Monday, December 21, 2015

Market Manipulation? Chevron General Counsel Pate Has Some Explaining to Do to the SEC

The forum shopping by Chevron's General Counsel R. Hewitt Pate in Gibraltar to evade the company's $10 billion Ecuador liability seems to have backfired. We understand the desperation: largely under Pate's watch Chevron has spent an estimated $2 billion on 2,000 lawyers and 60 law firms in a futile attempt to fend off impoverished villagers who in 2013 won a historic environmental judgment against the company.

Now, Chevron might have to explain Pate's apparent market manipulation to the Securities and Exchange Commission.

Unable to shake the villagers, Pate resorted again to publishing a misleading press release to try to cover up his recent courtroom setbacks that now threaten company assets. These setbacks include the recent meltdown of the company's star witness -- he admitted lying on the stand -- and a unanimous decision against Chevron by Canada's Supreme Court allowing the villagers to try to seize the oil giant's assets to force compliance with their judgment.

The question arises: is Pate putting out misleading press releases to try to save his own skin in the face of increasing angst over the Ecuador liability from Chevron's Board? Or does Chevron's Board actually sanction what appears to be market manipulation from its General Counsel?

The latest misleading Chevron press release -- issued last week with a juicy quote from Pate himself -- had the following headline: Supreme Court of Gibraltar Rules Against Donziger Offshore Company; Awards Chevron $28 Million.

According to, Chevron's stock price bumped up with the publication of the Chevron release. Chevron's misleading interpretation of the default judgment was largely parroted by Paul Barrett of Businessweek and other pro-business journalists.

Let's break it down and assess whether the latest Chevron press release violates the holy grail of securities law which requires a company to be completely honest about any material issue in all of its public statements.

First, we note that the "Supreme Court" of Gibraltar as described by Pate is not really a Supreme Court. The Gibraltar court for purposes of this case consisted of one solitary trial judge. This judge was required by law to rule in favor of Chevron because the case was not defended.

Second, Gibraltar is not a real country. It is a tiny British protectorate of only 30,000 citizens that occupies 2.6 square miles of territory connected to Spain on the southern side of the Iberian Peninsula. A relic of the British Empire, Gibraltar is so small the country's main road doubles as an airport landing strip.

Nevertheless, the elected leader of Gibraltar refers to himself as "Prime Minister" while the local trial court is called a "Supreme Court". Pate thought he would pull a fast one and make it seem like the ruling was a considered decision by several top-ranking appellate justices from a real country; it was decidedly not.

As the villagers pointed out in a devastatingly funny press release, the entire territory of Gibraltar is less than half the size the rural town of Ocala in North Florida. We suspect justice is probably more fair in Ocala than in Gibraltar, but that's a story for another day.

Third, the so-called default "award" is utterly worthless to Chevron. It came against an entity called Amazon Recovery Limited, or ARL. ARL has no money and will never have money. The villagers set up ARL in 2012 to collect the proceeds of their historic judgment that Chevron refuses to pay, despite orders that it do so from the Supreme Court in Ecuador. Given Chevron's targeting of ARL, the villagers long ago said they would no longer use it for its intended purpose nor waste their limited resources defending it.

The purpose of creating ARL in Gibraltar was to ensure that no official in Ecuador's government or in Chevron could interfere with the proceeds before a clean-up could take place. This is understandable given Chevron's history of trying to sabotage and corrupt the proceedings in Ecuador. That plan as envisioned by the villagers obviously did not work because of Chevron's latest subterfuge.

Luis Yanza, an Ecuadorian community leader and a director of ARL, explained it does not matter. "We are too smart to get sucked in by Chevron's abusive attempts to tie up our lawyers in irrelevant proceedings which the company uses to distract attention from its legal obligations to those it harmed," Yanza said.

Good for you, Mr. Yanza.

Fourth, Pate predictably used the latest press release to try to link the default judgment to U.S. human rights lawyer Steven Donziger. Unable to explain away the billions of gallons it dumped into Ecuador's Amazon -- oil waste confirmed by dozens of independent journalists -- Chevron years ago launched a demonization campaign against Donziger and his clients to distract attention from its own crimes and fraud. Donziger, called a "warhorse lawyer" by Rolling Stone, has advised the villagers for two decades and has admirably stood tall in the face of Chevron's attacks.

(For more on Donziger's point of view, see these counterclaims he filed against Chevron outlining the company's long history of illegal behavior in Ecuador.)

Again, we understand Pate's frustration. Donziger works alone out of his apartment in Manhattan while Pate pays dozens of law firms to try to destroy the Ecuador case by targeting him. Everything Pate has done to try to try to bring down Donziger, including an open-ended espionage campaign and launching what is probably the most expensive retaliation campaign in U.S. history, has come up short. Pate initially had Chevron sue Donziger personally for $60 billion dropping all damages claims out of fear a jury would rule against the company.

As the villagers point out, Donziger was not a director of the company against which Chevron has its illusory default judgment in Gibraltar. Nor did he participate in a single meeting. The directors were Yanza, two other villagers, a representative from the internationally respected accounting firm Grant Thornton, and a British barrister. So why other than market manipulation would Pate call it a "Donziger offshore company" in the headline?

In the latest press release from the villagers, Donziger described Pate's strategy better than we ever could:
Pate forum shopped the world to extract a judgment from an irrelevant jurisdiction that commands no respect on the global stage in a case that was understandably and quite properly never defended on the merits because it does not matter. The Gibraltar judgment has zero value to Chevron other than as a public relations stunt to distract attention from its growing financial risk due to advances in enforcement actions targeting company assets in Canada and elsewhere.
Donziger added there was element of racism to Chevron's attempts to discount the ability of the villagers to govern their own affairs:
Pate and his colleagues in Chevron act as if no indigenous person from Ecuador's rainforest has either volition or intelligence. They seem to believe the villagers are simply dumb people manipulated by outsiders. I understand this mentality because that's how Texaco viewed the Ecuadorian people when it deliberately destroyed their lands and waterways. Today, that approach reeks of racism. It is also based on patently false assumptions as anybody can see by simply talking to the internationally recognized community leaders who have battled Chevron so successfully for years.
Chevron shareholders whose dividends are under threat might note that the $28 million default judgment was to obtain partial reimbursement for the exorbitant fees Pate paid to the law firms the company has used to attack the villagers and Donziger. Bills submitted in Gibraltar showed some of these lawyers were charging more than $1,200 per hour to carry out the campaign.

Pate, who earned almost $8 million from Chevron the year he lost the Ecuador case, has gotten in trouble before by trying to make Chevron's litigation position appear stronger than it is. In 2013, Pate put out another press release falsely trumpeting a decision from a private international arbitration as a "victory" in the Ecuador litigation when in fact it was nothing of the sort.

In 2012 and 2013, Pate also had no answer for detailed reports submitted to the SEC showing Chevron was deliberately misleading shareholders about its growing  risk in Ecuador. Those rather harrowing reports of company malfeasance, which prompted a shareholder revolt against CEO John Watson at the 2013 Chevron annual meeting, can be read here and here.

The SEC failed to catch the rather obvious market manipulation before the 2008 financial meltdown. Maybe the agency will do something this time to protect Chevron's shareholders and the financial markets from the obvious misconduct of Pate and other top-level managers.